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2017 DIGILAW 892 (GAU)

Union of India v. Girish Das Biswas

2017-07-11

AJIT SINGH, MANOJIT BHUYAN

body2017
JUDGMENT & ORDER : Manojit Bhuyan, J. Heard Dr. B.N. Gogoi, learned counsel for the appellant as well as Mr. S.K. Ghosh, learned counsel representing respondent no. 1/writ petitioner. Also heard Mr. R.K.D. Choudhury, Senior Additional Government Advocate for respondent nos. 2 to 6. Respondent no. 7 has put in appearance through Mr. D. Choudhury, Advocate. Leave to file the present appeal against the Order dated 12.12.2013 passed in WP(C) 2956/2008 was granted vide Order dated 16.12.2014 in MC 2059/2014 and the appeal was admitted for hearing on 21.06.2017. 2. The basic challenge to the Judgment & Order dated 12.12.2013 is on the point that the appellant was not arrayed as a party respondent, despite being a necessary party and, as such, was denied any opportunity of hearing and/or to highlight its stand on the actual state of affairs as regards the land in question over which dispute arose. To appreciate the stand of the appellant, it would be essential to notice the basic facts involved in the present case. 3. A plot of land measuring 12 Bighas 1 Katha 9 Dhoor covered by Dag No. 45 of Khatian No. 1 in Dhubri Town was originally settled with the respondent no. 1/writ petitioner’s father late Gayanath Biswas. On the demise of Gayanath Biswas, the land in question was mutated in the name of the appellant N.F. Railways instead of being mutated in the name of the respondent no. 1/writ petitioner. This led to institution of a suit i.e. Title Suit No. 320/1998 by the respondent no. 1/writ petitioner before the Court of the Civil Judge (Junior Division) No. 1, Dhubri for declaration of right, title and interest as well as for confirmation of possession over the suit land in question. Both the State of Assam as well as N.F. Railways were arrayed as party defendants. The Title Suit was decreed on contest on 07.12.1999. The said respondent no. 1/writ petitioner instituted Title Execution Case No. 12/2000 and the Executing Court passed Order dated 20.06.2000 directing the District Collector, Dhubri to correct the land records as per the decree. Events occurring thereafter came in the form of applications made by third parties before the Settlement Officer, Dhubri as well as before the Director of Land Records & Surveys, Assam to refrain from making such correction in the land records. Events occurring thereafter came in the form of applications made by third parties before the Settlement Officer, Dhubri as well as before the Director of Land Records & Surveys, Assam to refrain from making such correction in the land records. Although such applications were rejected by the Director of Land Records & Surveys by Order dated 25.11.2002 with consequent direction to the Settlement Officer, Dhubri to correct the land records as per the decree of the Civil Court, a letter came to be issued on 13.12.2002 by the Deputy Secretary to the Govt. of Assam, Revenue (Settlement) Department, instructing the Settlement Officer, Dhubri not to take steps for correction of land records. This letter of the Deputy Secretary was issued on a petition filed by the respondent no. 7. Aggrieved, the respondent no. 1/writ petitioner had instituted WP(C) 139/2003. As during the pendency of the said writ petition the Revenue Authorities corrected the land records on 21.04.2003 by recording the name of the respondent no. 1/writ petitioner as patta holder of the suit land, the writ petition was closed on 14.05.2007 as having been rendered infructuous and interim stay earlier granted was vacated. The matter did not rest there. On 28.8.2007 the Settlement Officer, Dhubri directed the Assistant Settlement Officer to record the name of N.F. Railways as pattadar of the suit land, which was accordingly done on 10.09.2007. This action prompted the respondent no. 1/writ petitioner to prefer appeal under Section 147 of the Assam Land & Revenue Regulation, 1886 before the Assam Board of Revenue. The said appeal, however, stood dismissed on 08.7.2008 holding that in view of the bar under Section 154 of the Regulation, the Civil Court was without jurisdiction to pass order or to issue directions for correction of record-of-right. Constrained thus, the related writ petition i.e. WP(C) 2956/2008 was instituted. 4. The learned Single Judge allowed the writ petition by setting aside the order of the Assam Board of Revenue dated 08.7.2008 as well as the order of the Assistant Settlement Officer, Dhubri dated 10.9.2007. Cost of Rs. 10,000.00 was imposed, to be payable in equal proportion between the Settlement Officer, Dhubri and the Assistant Settlement Officer, Dhubri for forcing unnecessary litigation on the respondent no. 1/writ petitioner. Cost of Rs. 10,000.00 was imposed, to be payable in equal proportion between the Settlement Officer, Dhubri and the Assistant Settlement Officer, Dhubri for forcing unnecessary litigation on the respondent no. 1/writ petitioner. The learned Single Judge held that vacation of the interim order as and when WP(C) 139/2003 had become infructuous could not have been construed in a manner that the name of the respondent no. 1/writ petitioner as recorded pattadar of the suit land should be replaced with that of the name of the N.F. Railways. The learned Single Judge also held that the Assam Board of Revenue misconstrued Section 154 of the Regulation and by placing reliance in the Full Bench decision of this Court in Daulatram Lakhani v. the State of Assam and Others, reported in (1989) 1 GLR 131 held that Section 154 of the Regulation does not bar the Civil Court from entertaining suit for declaration of title. Further, without any order of a higher forum reversing the decree passed by the Civil Court, it was not open to a Revenue Board or any other authority to say that the order of the Civil Court is a nullity and therefore they are not bound by the order of the Civil Court. 5. In the present proceedings the appellant submits that the respondent no.1/ writ petitioner had obtained the decree in Title Suit No. 320/1998 in a surreptitious and fraudulent manner without giving notice to the Railways and by suppressing material facts that the land in question actually belong to the Railways. It is further submitted that the land in question has been under occupation of the appellant since 1947 and in the Revenue records the said land was classified as Khas land. The respondent no.1/writ petitioner had only obtained licence from the Railways for the purpose of fishing in the said land and had once filed a writ petition, being WP(C) 6846/2001 challenging cancellation of the licence. The appellant submits that these facts could not be brought to the notice of the learned Single Judge as the appellant was not impleaded as party respondent in the writ petition. It is also averred by the appellant that the respondent no. The appellant submits that these facts could not be brought to the notice of the learned Single Judge as the appellant was not impleaded as party respondent in the writ petition. It is also averred by the appellant that the respondent no. 7 filed Title Suit No. 249/2002 for cancellation of the decree passed in Title Suit No. 320/1998 and since the same was pending adjudication, the learned Single Judge ought not to have passed the impugned Judgment & Order dated 12.12.2013. 6. We have heard the learned counsels for the parties and have perused the materials on record. As regards the decree passed in Title Suit 320/1998 is concerned, the pleadings on record show that the N.F. Railways had challenged the same in Title Appeal No. 29/2015 along with delay condonation petition before the Court of Civil Judge, Dhubri. The said appeal was dismissed on 05.01.2016, whereafter the N.F. Railways preferred second appeal i.e. RSA No. 15/2017 before this Court. Even the said second appeal was dismissed on 06.02.2017 after hearing both the parties and the Judgement & Decree dated 07.12.1999 passed in Title Suit No. 320/1998 was affirmed. It is also seen that the decree has already been executed and the land records have been duly corrected by the Revenue Authority. On a pointed query, Dr. Gogoi informs this Court that a Special Leave Petition to Appeal is pending before the Supreme Court as against the order passed in RSA 15/2017. 7. What is discernible from the above is that notwithstanding the submissions of the appellant that the decree in Title Suit No. 320/1998 was obtained by misrepresentation and in a fraudulent manner and Title Suit No. 249/2002 filed by the respondent no. 7 for cancellation of the said decree is pending adjudication before the competent court of law, fact remains that the said decree dated 07.12.1999 declaring right, title and interest of the respondent no.1/writ petitioner over the land in question with confirmation of his possession over it has remained undisturbed until this date. Without reversal of the said decree by any higher forum, it was not open to the Revenue Authority or the Assam Board of Revenue to question the same. Without reversal of the said decree by any higher forum, it was not open to the Revenue Authority or the Assam Board of Revenue to question the same. Taking judicial notice of subsequent events, it is also seen that the decree dated 07.12.1999 was also confirmed in Title Appeal No. 29/2015 filed by the N.F. Railways and also affirmed by this Court in RSA 15/2017 vide Order dated 06.02.2017. As regards the pleading that the appellant was not made party respondent in the related writ petition, we find that this position cannot go to dent the decree dated 07.12.1999 even if the appellant had been arrayed as respondent in the writ petition. Legal remedies upto the filing of second appeal have already been availed by the appellant challenging the decree dated 07.12.1999 by means of Title Appeal No. 29/2015 and RSA 15/2017, albeit without any success. In fact, the decree dated 07.12.1999 has already been executed and the land records recording the name of the respondent no.1/ writ petitioner as patta holder of the suit land has already been effected. In this view of the matter, we find that the present writ appeal is misconceived and no relief whatsoever can be granted to the appellant. To reiterate, the decree dated 07.12.1999 in Title Suit No. 320/1998 have remained undisturbed until this date. The right, title and interest of the respondent no.1/ writ petitioner over the land in question in the light of the decree dated 07.12.1999 have thus remained intact until this date. Steps taken by the Revenue Authority in correcting the land records in favour of the respondent no.1/writ petitioner have also stood complete. As such, we find no merit in the present appeal and/or to cause any interference to the judgment & order passed by the learned Single Judge in WP(C) 2956/2008. As a necessary corollary, this writ appeal fails and stands dismissed, however, without any order as to costs.